Citation Nr: 0901465
Decision Date: 01/14/09 Archive Date: 01/22/09
DOCKET NO. 06-19 309 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Columbia,
South Carolina
THE ISSUE
Entitlement to special monthly compensation based on the need
for regular aid and attendance, or on the account of
housebound status.
REPRESENTATION
Veteran represented by: The American Legion
WITNESSES AT HEARING ON APPEAL
The veteran, his spouse, and T.L.
ATTORNEY FOR THE BOARD
D. Hachey, Associate Counsel
INTRODUCTION
The veteran served on active duty from August 1974 to May
1977.
This case comes before the Board of Veterans' Appeals (the
Board) on appeal from a March 2005 rating decision of the
Department of Veterans Affairs (VA) Regional Office in
Columbia, South Carolina (the RO).
The veteran, his spouse, and T.L. presented testimony before
the undersigned Acting Veterans Law Judge at the RO in March
2008. A transcript of this hearing has been associated with
the veteran's VA claims folder.
FINDINGS OF FACT
1. The veteran is service connected for nonpsychotic brain
syndrome with headaches, vertigo, and a seizure disorder due
to brain trauma, which is currently evaluated as 60 percent
disabling. He is also service connected for bilateral
hearing loss with postoperative transsection of the right 8th
cranial nerve, currently evaluated as 10 percent disabling;
and right sided hemiparesis, currently evaluated as
noncompensably disabling. The veteran is also in receipt of
a total disability rating based on individual
unemployability.
2. The medical and other evidence of record does not
demonstrate that the veteran's service-connected disabilities
have rendered him permanently bedridden or so helpless that
he is unable to perform self-care tasks or protect himself
from the hazards incident to his daily environment without
care or assistance of another person on a regular basis.
3. The medical and other evidence of record does not
demonstrate that the veteran's service-connected disabilities
have caused him to be permanently housebound.
CONCLUSION OF LAW
The criteria for special monthly compensation based on the
need for regular aid and attendance, or on the account of
housebound status, have not been met. 38 U.S.C.A. § 1114
(West 2002); 38 C.F.R. §§ 3.350, 3.352 (2008).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
This appeal arises out of the veteran's contention that his
service-connected disabilities, particularly his seizure
disorder, have compromised his independence and left him
unable to travel outside of his home without accompaniment.
I. Duties to notify and assist
As provided for by the Veterans Claims Assistance Act of 2000
(VCAA), VA has a duty to notify and assist claimants in
substantiating a claim for benefits. See 38 U.S.C.A.
§§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp.
2008); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2008).
Upon receipt of a complete or substantially complete
application for benefits, VA is required to notify the
claimant and his or her representative, if any, of any
information, and any medical or lay evidence, that is
necessary to substantiate the claim. 38 U.S.C.A. § 5103(a)
(West 2002); 38 C.F.R. § 3.159(b) (2008); see also Quartuccio
v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA
must inform the claimant of any information and evidence not
of record (1) that is necessary to substantiate the claim;
(2) that VA will seek to provide; (3) that the claimant is
expected to provide; and (4) must ask the claimant to provide
any evidence in his or her possession that pertains to the
claim. Such notice must be provided prior to an initial
unfavorable decision on a claim by the agency of original
jurisdiction (AOJ). See Mayfield v. Nicholson, 444 F.3d 1328
(Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112
(2004).
In the instant case, the VCAA duty to notify was satisfied by
way of a letter sent to the veteran in December 2004 that
fully addressed all four notice elements and was sent prior
to the initial AOJ decision in this matter. The December
2004 letter informed the veteran of what evidence was
required to substantiate his special monthly compensation
claim and of his and VA's respective duties for obtaining
such evidence. The veteran was also asked to submit any
evidence and/or information in his possession to the AOJ.
All relevant evidence necessary for an equitable resolution
of the issue on appeal has also been identified and obtained,
to the extent possible. The evidence of record includes
extensive VA treatment records; the reports of multiple VA
examinations; and the transcript of a March 2008 hearing
before the undersigned. At the hearing, the veteran also
submitted additional evidence in the form of statements from
friends and relatives directly to the Board, along with a
waiver of RO consideration of such evidence. See 38 C.F.R. §
20.1304 (2008).
Although the veteran indicated on VA examination in March
2005 that he is in receipt of Social Security disability
benefits, the Board does not believe that remand of the case
to obtain these records is necessary. The veteran has
indicated that he receives all treatment related to his
service-connected disabilities from VA. See, e.g., Board
Hearing Tr. at 7-8. As noted above, all of the veteran's VA
treatment records have been obtained. Remand of the case to
obtain records from the Social Security Administration would
likely yield only duplicate VA treatment records, while at
the same time resulting in considerable delay in final
adjudication of the veteran's claim. See generally Soyini v.
Derwinski, 1 Vet. App. 540, 546 (1991) (holding that strict
adherence to requirements in the law does not dictate an
unquestioning, blind adherence in the face of overwhelming
evidence in support of the result in a particular case; such
adherence would result in unnecessarily imposing additional
burdens on VA with no benefit flowing to the veteran). In
any event, the evidence already of record (including
extensive VA treatment records, numerous VA examination
reports, and the veteran's hearing testimony) provides a
clear picture of the veteran's symptoms and their effect on
his independence and ability to perform the activities of
daily living. Remand of the case to obtain additional
records would likely not result in any additional insight
into the veteran's disability picture. Moreover, as will be
discussed below, there appears to be little dispute
surrounding the nature of the veteran's symptoms. The key
question is whether such symptoms meet the criteria for
special monthly compensation - a question additional Social
Security records would not help answer.
The veteran and his representative have not identified any
other outstanding relevant evidence. In short, the Board
finds that VA has satisfied its duties to notify and assist
and additional development efforts at this time would only
result in an unnecessary delay in this case. Thus, the Board
will proceed with adjudication.
II. Entitlement to special monthly compensation
Special monthly compensation is payable at a specified rate
if the veteran, as the result of service-connected
disability, is in need of regular aid and attendance. "Need
for aid and attendance" means helplessness or being so
nearly helpless as to require the regular aid and attendance
of another person. A veteran will be considered to be in
need of regular aid and attendance if he or she is blind or
is so nearly blind as to have corrected visual acuity of
5/200 or less, in both eyes, or concentric contraction of the
visual field to 5 degrees or less. See 38 C.F.R. § 3.351(b),
(c)(1) (2008). Need for aid and attendance is also
established if the veteran is a patient in a nursing home
because of mental or physical incapacity, or if the evidence
establishes a factual need for aid and attendance or
"permanently bedridden" status under the criteria set forth
in 38 C.F.R. § 3.352(a). 38 U.S.C.A. § 1114(l) (West 2002);
38 C.F.R. § 3.351 (c)(2),(3) (2008).
The criteria set forth in 38 C.F.R. § 3.352(a) note that the
following will be accorded consideration in determining the
need for regular aid and attendance: inability of claimant to
dress or undress himself, or to keep himself ordinarily clean
and presentable; frequent need of adjustment of any special
prosthetic or orthopedic appliances which by reason of the
particular disability cannot be done without aid; inability
of claimant to feed himself through loss of coordination of
upper extremities or through extreme weakness; inability to
attend to the wants of nature; or incapacity, physical or
mental, which requires care or assistance on a regular basis
to protect the claimant from hazards or dangers incident to
his or her daily environment. "Bedridden" status will also
be a proper basis for the determination. 38 C.F.R.
§ 3.352(a) (2008). A veteran will be found to be
"bedridden" if the condition actually requires that he
remain in bed, but not if he voluntarily stays in bed or if a
physician merely recommends bed rest.
Although a veteran need not show all of the disabling
conditions identified above to establish entitlement to aid
and attendance, the United States Court of Appeals for
Veterans Claims has held that it is logical to infer there is
a threshold requirement that "at least one of the enumerated
factors be present." Turco v. Brown, 9 Vet. App. 222, 224
(1996).
Special monthly compensation is also payable at a specified
rate if the veteran, as the result of service-connected
disability, has one service-connected disability rated as 100
percent disabling and a separate disability rated at 60
percent or higher or he is permanently housebound. The
veteran will be found to be permanently housebound if, due to
his service-connected disabilities, he is substantially
confined to his home or the immediate premises or, if
institutionalized, to the ward or clinical areas, and it is
reasonably certain that such confinement will continue
throughout his lifetime. 38 U.S.C.A. § 1114(s) (West 2002);
38 C.F.R. § 3.350(i) (2008).
After reviewing the medical evidence of record, it appears
that the veteran's service-connected disabilities, while
severe, do not require regular aid and attendance and have
not rendered him housebound. As an initial matter, the
veteran's service-connected disabilities do not appear to
have significantly effected his eyesight or resulted in
blindness or near blindness. Moreover, while the veteran
receives regular treatment for these conditions, they have
not required long-term care in a skilled nursing facility.
To the contrary, the veteran lives at home and receives the
vast majority of his medical care on an outpatient basis from
various VA facilities. He therefore does not meet the aid
and attendance requirements set forth in 38 C.F.R. §
3.351(c)(1) and (c)(2).
The veteran also does not meet the aid and attendance
requirements of 38 C.F.R. § 3.352(a), which are outlined
above. The veteran appears to have no difficulty dressing,
bathing or feeding himself, or attending to the wants of
nature. On VA aid and attendance examinations in March 2005
and December 2006, the veteran indicated that he has no
difficulty in feeding, dressing, or bathing or himself.
He stated that he was able to prepare meals and demonstrated
the ability to button and unbutton his shirt without
difficulty. Treatment records regularly note his appearance
as being "neat and clean" and do not reflect the need for
any assistance in toileting.
The veteran also appears able to perform the activities of
daily living without difficulty. On VA examination in March
2005 and December 2006, he indicated that he was able to
perform various household chores such as washing dishes,
doing laundry, folding clothes, sweeping, vacuuming, and
raking leaves. The veteran also reported that he was able to
engage in monetary transactions. Outpatient treatment
records note similar findings.
The veteran is also not bedridden or confined to his home.
The veteran specifically denied being bedridden during his
March 2005 VA examination. Although he is typically
accompanied by a family member when traveling outside the
home, the medical record indicates that he is not confined to
his residence. The veteran has reported that he regularly
accompanies his wife grocery shopping, running errands,
visiting an elderly neighbor, and going fishing. At his
December 2006 VA examination, the veteran indicated that he
had recently accompanied his family on a two-week Caribbean
cruise. The December 2006 VA examiner specifically concluded
that "the veteran is not restricted to his home or [its]
immediate area." Treatment records further note that he is
able to ambulate without assistance or physical difficulty.
The veteran is also not in possession of a 100 percent
disability rating for one service-connected disability and 60
percent for another, which would cause him to be technically
characterized as "housebound" under 38 C.F.R. § 3.351(i).
The veteran's principal argument seems to center around the
final § 3.352(a) factor, namely that he requires care or
assistance on a regular basis to protect himself from hazards
or dangers incident to his daily environment. In this
regard, the veteran's spouse offered testimony to the effect
that she is afraid to leave the veteran unattended out of
concern that he might injure himself while in the throes of a
seizure. See Board Hearing Tr. at 5-6. She further noted
that that a family member or friend is with the veteran
"literally 24/7" as a precautionary measure. Id. at 5.
The veteran and his spouse further noted that the veteran can
have multiple seizures per day and that while some are
relatively minor, others are accompanied by tremors, loss of
bladder and bowel control, intermittent loss of
consciousness, and vomiting.
While the Board acknowledges the severity of the veteran's
disability and empathizes with the strain this has placed on
the veteran and his family, the medical evidence of record
does not demonstrate that the veteran cannot be left
unattended. The March 2005 examiner concluded that although
the veteran "certainly benefits from 24 hour supervision of
his safety, [I do] not believe that he requires constant 24
hour supervision." The examiner also noted that the
veteran's seizures have not resulted in significant injury
and that while falls during his seizures have caused "small
cuts and abrasions," they have "never [caused] any
fractures, dislocations or lacerations that required
stitches."
The December 2006 VA examiner arrived at a similar
conclusion, noting that the veteran "does not require
continuous supervision or continuous assistance of another."
Both opinions were reached after a complete physical
examination and interview of the veteran and, in the case of
the December 2006 examiner, a complete review of his claims
file and pertinent medical history contained therein. No
contradictory medical opinion is of record.
The veteran has also indicated that his service-connected
seizure disorder has left him unable to drive and thus, more
dependent on others to drive him to medical appointments and
to help run errands. See Board Hearing Tr. at 3-4. While it
is undisputed that the veteran's seizure disorder has left
him unable to drive, this alone does not render him
"housebound" or at the level of near helplessness required
for the award of aid and attendance benefits.
In summary, while it is clear the veteran's service-connected
disabilities are severe in nature and have resulted in
significant hardship for both he and his family, such
disabilities have not rendered him housebound, bedridden, or
in need of aid and attendance. The veteran is able to
perform the activities of daily living without difficulty,
performs household chores, regularly leaves his home, and
participates in limited leisure activities. Moreover,
despite his family's understandable apprehension about
leaving him alone, the medical record simply does not
demonstrate that care or assistance is needed on a regular
basis to protect the veteran from hazards or dangers incident
to his daily environment. The requirements for special
monthly compensation based on the need for regular aid and
attendance or housebound status have therefore not been met.
The benefit sought on appeal is accordingly denied.
ORDER
Entitlement to special monthly compensation based on the need
for regular aid and attendance or housebound status is
denied.
____________________________________________
Laura H. Eskenazi
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs